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2012 DIGILAW 1043 (AP)

Badavath Janna Bai v. Afsari Begum

2012-10-18

B.CHANDRA KUMAR

body2012
ORDER This appeal is directed against the order and decree dated 22.07.2002 passed in O.P.No.536 of 1999 by the Motor Accidents Claims Tribunal-cum-District Judge, Adilabad. 2. The appellant hereinafter will be referred to as claimant for the sake of convenience. She filed this appeal seeking enhancement of compensation. 3. The brief facts of the case are as follows. On 24.3.1999 at about 4-00 p.m., the claimant and others were travelling in the auto bearing No.1 U 1857 from Kavval to Jannaram Village and when the said auto fell in a pit due to the rash and negligent driving of its driver, she sustained multiple injuries including fracture to her back bone. The claimant filed the above OP claiming total compensation of Rs.50,000/- 4. The first respondent-owner of the auto remained ex parte. The second respondent-insurance company, with which the auto was insured, denied the material averments made by the claimant and denied its liability on the ground that the driver of the auto had no valid driving licence at the time of the accident. 5. Basing on the respective pleadings, the Tribunal framed the following issues for trial. 1. Whether the accident occurred on 24.3.1999 due to rash and negligent driving with a vehicle bearing No.AP.1U 1857 (auto) by its driver? 2. Whether the petitioner is entitled to any compensation. If so, to what amount and against which of the respondents? 3. To what relief? 6. On behalf of the claimant, the claimant herself was examined as PW1 and Exs.A1 to A3 were marked. On behalf of the second respondent insurance company, copy of charge sheet filed by the police against the driver was marked as Ex.B1. 7. The Tribunal while accepting the recitals of Ex.B1, came to the conclusion that the driver was not having any valid licence and therefore, held that the insurance company is not liable to pay any compensation to the claimant. 8. Learned counsel for the appellant submitted that the burden lies on the insurance company, but it has neither examined any witnesses nor summoned the driver of the auto/ any RTA official from RTA Department. He also submitted that basing on the recitals of charge sheet, no finding can be given. Reliance has been placed on the judgment in National Insurance Co., Ltd., Kurnool v. Chakali Rangaiah and another ( 2007 (5) ALD 358 ). 9. He also submitted that basing on the recitals of charge sheet, no finding can be given. Reliance has been placed on the judgment in National Insurance Co., Ltd., Kurnool v. Chakali Rangaiah and another ( 2007 (5) ALD 358 ). 9. As far as the finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of auto is concerned, the same is not in dispute. The other finding of the Tribunal that the claimant is entitled to compensation of Rs.29,000/-, is also not in dispute. 10. The only point that arises for consideration is whether the insurance company is able to prove that the driver of the auto was not having any valid licence on the date of accident. 11. Except, Ex.B1 there is no other evidence in this case. The insurance company has not examined any witnesses on its behalf. The driver of the auto is also not examined. The owner of the vehicle remained ex parte. The insurance company has not taken any steps to summon records from the concerned RTA to show that the driver of the auto had no valid driving licence on the date of accident. Except the recitals of Ex.B1 charge sheet there is nothing on record to show that the owner of the vehicle allowed the driver to the vehicle and thereby consciously violated the terms of the policy. Of course, in Ex.B1, the police alleged that the driver of the auto was not having any valid driving licence. It shows that the driver voluntarily confessed his guilt and disclosed that he is not having any valid driving licence. He was also charge sheeted for the offences punishable under Sections 337, 338 IPC, Section 3/181 of the MV Act. The Sub Inspector of Police, Jannaram who filed the charge sheet is not examined. In the absence of any witness, the allegations made by the police in the charge sheet cannot be taken as gospel truth. It has to be seen that there is no record to show as to what happened in the criminal Court on the basis of the charge sheet filed by the police. It is not clear whether the accused had contested the matter and denied the allegations made in the charge sheet before the Court. It has to be seen that there is no record to show as to what happened in the criminal Court on the basis of the charge sheet filed by the police. It is not clear whether the accused had contested the matter and denied the allegations made in the charge sheet before the Court. Had the accused admitted the guilt before the Criminal Court that would have been a different circumstance and basing on such judgment of the Criminal Court, the Tribunal could have come to a conclusion that the driver was not having any valid driving licence. But, basing on the allegations made by the police, in the charge sheet, no finding can be given unless the same is proved by admissible evidence. 12. It appears that it is not safe to accept the allegations made in the charge sheet as true without any corroborating evidence. It has to be seen that the police have not cited the Motor Vehicle Inspector who inspected the vehicle after the accident. It is not clear whether the police had sent any requisition to the Motor Vehicle Inspector to examine the vehicle and issue a certificate. 13. Learned counsel for the respondent-Insurance Company submitted that the contents of the charge sheet go to show that the driver is not having driving licence and therefore there is no need to disturb the finding of the Tribunal. Relying on the decision reported in National Insurance Company Limited v. Rattani ( 2009 ACJ 925 ), the learned counsel for the respondent submitted that the recitals of the FIR can be looked into. In that case, the claimants have made the contents of FIR as a part of the claim petition and it was treated as an admission made in the pleading. Relevant para is as follows. “We are not oblivious of the fact that ordinarily an allegation made in the first information report would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that Tribunal and consequently the appellate courts would be entitled to look into the same.” 14. As seen from the above, it is true that the Apex Court in the said judgment observed that the Tribunals would be entitled to look into the allegations made in the FIR when it has been made as a part of the claim petition. But, in this case the allegations made in the charge sheet against the driver pertain to an offence of driving the vehicle without valid driving licence. If such allegation is accepted without any corroborative evidence it amounts to proving the offence basing on the allegations made by the police in the charge sheet without any evidence. No charge pertaining to any offence either under the provisions of Penal Code or under the provisions of any Act can be said to be proved or even accepted by any Court or Tribunal without proving the same in accordance with law. Referring to certain allegations or facts mentioned in the FIR is something different from making allegations of committing an offence in the charge sheet. Therefore, the above referred decision can be distinguished on facts. 15. In the above circumstances, it cannot be said that the insurance company proved that the owner of the vehicle deliberately allowed a person, who had no valid driving licence to drive the vehicle. Accordingly, I hold that the insurance company is liable to indemnify the owner of the vehicle. 16. The learned counsel for the Insurance Company submits that the rate of interest may be reduced in view of the latest decisions. On the other hand, learned counsel for the claimants submits that the OP was dismissed against the Insurance Company and since the Insurance Company has not preferred any appeal, it cannot ask to reduce the rate of interest. However, in the circumstances, it appears that since the Insurance Company is respondent in this appeal it can support the award and request to reduce the interest. In the circumstances, I deem it proper to reduce the rate of interest to 7.5% p.a., from the date of filing the appeal. 17. In the result, the Civil Miscellaneous Appeal is allowed. However, from the date of petition till the date of filing of appeal, the interest rate shall be as awarded by the Tribunal, but from the date of filing appeal, the interest rate shall be 7.5% p.a. No costs.